Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Clarence A. Williams v. City of Philadelphia, No. A-85140.
Floyd W. Cotlar, Kirschner, Walters & Willig, for petitioner.
Stephen A. Sawyer, Deputy City Solicitor, for respondent, City of Philadelphia.
Judge Colins, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 119 Pa. Commw. Page 127]
Claimant in this workmen's compensation case, Clarence A. Williams, formerly a laborer for the City of
[ 119 Pa. Commw. Page 128]
Philadelphia, totally disabled since December 15, 1977, seeks review of an order of the Workmen's Compensation Appeal Board (Board), which reversed an award by a referee in his favor, the reversal on the basis that his claim was barred by collateral estoppel by reason of a Philadelphia Service Commission decision.
Claimant was found by the referee to be totally disabled as the result of "recurrent discogenic damage" suffered on December 15, 1977 in the course of his employment as the result of a strain to his lower back at that time. Claimant first sought benefits under Philadelphia Civil Service Regulation 32.12 on appeal to the Civil Service Commission on April 8, 1980. Claimant also filed a claim petition with the workmen's compensation authorities of Pennsylvania on September 11, 1980. Defendant in an answer containing no specific averments, simply "1-6 Denied, 8-13 Denied" followed by a statement "the aforesaid is denied in as much as the defendant has not yet had the time to verify their accuracy." Page 6a of the Reproduced Record.
Chronologically, the next event was the decision by the Philadelphia Civil Service Commission on October 16, 1980 which was unappealed by Claimant. Instead, Claimant pursued his workmen's compensation claim, on which a pre-trial conference was held on December 9, 1980, the first hearing before a referee on February 3, 1981 and the last hearing at which testimony was taken was on May 5, 1981 when Claimant rested his case. Thereafter, the City of Philadelphia requested continuances on three occasions and, a final listing for a hearing on January 31, 1982, when, for the first time, the City entered a plea of collateral estoppel on the basis of the unappealed Civil Service Commission decision of October 16, 1980.*fn1 The referee found:
[ 119 Pa. Commw. Page 12916]
. That on January 21, 1982, after continuing this matter three times since Claimant's case was rested, and one and one-half years after the Claimant's Petition was filed, Defendant raised for the first time the affirmative defense of collateral estoppel, relying ...